Can court accept cases in which there is an arbitration agreement in Vietnam?

Can court accept cases in which there is an arbitration agreement in Vietnam?

My company and the partner company have signed a commercial contract. In the contract, we have agreed that if any dispute occurs, it will be resolved through commercial arbitration. However, after signing, it was discovered that the company's charter stipulated that this person had the right to sign contracts but could not agree in advance on the form of dispute resolution. Although quite complicated, after negotiation, this company accepted this arbitration agreement. Recently, my company was late in paying and this company announced that it would sue in court to resolve the matter. This company believes that the person who signed this arbitration agreement does not have enough authority, so this arbitration agreement is invalid. They have right to sue in court. Please ask in this case, will we resolve the dispute through court or through commercial arbitration? Thank.

Answer:

- Pursuant to Article 6 of the Commercial Arbitration Law 2010 stipulates: In case the disputing parties have reached an arbitration agreement but one party initiates a lawsuit at a court, the court shall refuse to accept the case, unless the arbitration agreement is invalid or unrealizable.

- On the other hand, Article 18 of the 2010 Commercial Arbitration Law stipulates that the arbitration agreement is invalid when the person establishing the arbitration agreement does not have authority according to the provisions of law.

=> With the above provisions in Vietnam, a person does not have the authority to establish an arbitration agreement when he is not a legal representative or is not a legally authorized person or is a legally authorized person but exceeds the scope of the arbitration agreement. Thus, the person who establishes the arbitration agreement of your company's partner company may be an authorized person but is beyond the scope of authorization. From there, it shows that if based on this regulation, the arbitration agreement is considered invalid.

- However, in the case you raise, this arbitration agreement is still valid. The reason is because after knowing that the person making the decision has no authority but the company has agreed, this agreement is considered to have officially taken effect from the date the company accepts the agreement. (According to Clause 2, Article 3 of Resolution 01/2014/NQ-HDTP)

Conclusion: With the above regulations and analysis in Vietnam, this case must be resolved by both parties by commercial arbitration.

Above is the consulting content.

If there is no arbitration agreement, can I sue at an arbitration center in Vietnam?

Currently, my company is planning to sue a company that is our partner in commercial arbitration due to breach of contract. Let me ask, in the contract we do not have an agreement that when there is a breach, the dispute will be resolved by commercial arbitration, however now I want to sue commercial arbitration, specifically VIAC, is that possible? Thanks for the answer. Thank!

Answer: Pursuant to Article 5 of the 2010 Commercial Arbitration Law stipulates:

1. A dispute shall be settled by arbitration if the parties have an arbitration agreement. An arbitration agreement may be made either before or after a dispute arises.

2. When one of the parties being an individual to an arbitration agreement dies or loses his/her act capacity, such arbitration agreement remains valid for his/her heir or representative at law. unless otherwise agreed by the parties.

3. When one of the parties being an institution to an arbitration agreement has to terminate its operation, goes bankrupt, or is dissolved, consolidated, merged, divided, split up or reorganized, such arbitration agreement remains valid for an institution that takes over the rights and obligations of the institution to such arbitration agreement, unless otherwise agreed by the parties.

=> So with the above regulations in Vietnam, if you want to sue at an arbitration center, you must have an agreement before or after. In this case, you did not have an agreement before the dispute arose, then after the dispute occurs, you must agree with the partner company to sue at a commercial arbitration center before you can sue. The reason for this regulation is that the arbitration center does not have an enforcement agency but is mainly an intermediary to resolve the matter based on the trust of the parties.

Above is the consulting content.

What is handling for arbitration agreement which is not specific in Vietnam?

We are two partner companies with a pretty good relationship. Usually in contracts we agree to resolve disputes at an arbitration center, and when there is a dispute at any arbitration center, we will agree. favorable. Recently, the partner company's delayed delivery resulted in serious damage to my company. After the agreement failed, my company filed a lawsuit at the VIAC arbitration center. However, when receiving a petition from the arbitration center, the partner company did not accept it, so they complained and requested to change the arbitration center? Can I ask if such a request is acceptable? If so, what is handling for it? Thank!

Answer: - Pursuant to Clause 5, Article 43 of the 2010 Commercial Arbitration Law, it is stipulated that when the parties have an arbitration agreement but fail to indicate the form of arbitration or cannot identify a specific arbitration institution, if a dispute arises, the parties shall agree again on the form of arbitration or a specific arbitration institution to settle the dispute. If no agreement can be reached, the form of arbitration or an arbitration institution to settle the dispute shall be selected at the plaintiff's request.

=> The fact that the parties did not clearly state in their arbitration agreement which arbitration center would resolve the dispute, so when a dispute arises, the parties must re-agree on which specific arbitration center has jurisdiction. This shows that the partner company's refusal to accept is well-founded. However, this Law stipulates that if the agreement fails, the form and center of arbitration shall be decided by the plaintiff.

Conclusion: In this case, when the partner company does not agree, you will have to invite the partner to renegotiate on which arbitration center to choose. If no agreement can be reached, you will keep the lawsuit at the VIAC in accordance with the procedures of the Commercial Arbitration Law in Vietnam.

Above is the consulting content.

Best regards!